Criminal Defense Attorney Page Pate walks through the steps of a criminal appeal in Georgia and explains how the process works, from start to finish. He focuses on how to appeal a criminal case in the Georgia Court of Appeals and Supreme Court of Georgia. He also discusses habeas petitions, and how those are filed and considered.
If you have questions about how to appeal a criminal case in Georgia, contact our criminal appeal lawyers to discuss your case and we will let you know if we can help.
How do you appeal a conviction in a Georgia criminal case? I’ve been representing people in Georgia for over 25 years, and we have handled a lot of criminal appeals. The process can be very confusing to someone who’s not gone through it before, but they are really just a few basic steps. The first step, is you filed a notice of appeal, and that’s a simple document. It’s basically a one page form that tells the judge and the clerk that you’re going to appeal the case to a higher court. Now, you may not wanna file that notice of appeal first. The other option is to file a motion for new trial. And the reason your lawyer may wanna do that is so he can take the case back to the same judge who handled it first, and see if he can correct whatever went wrong. This is especially true if you’ve hired a new lawyer who thinks that the first lawyer may have been ineffective. The only way to raise those arguments during your appeal is to first give that initial judge another shot at it.
If you file a motion for new trial, the judge will grant you a hearing, and that way your lawyer can call in the first lawyer and question that lawyer, “Why didn’t you do this or why did you do that?” And try to build up a record so that you can challenge the effectiveness of that lawyer on appeal. But whichever form that you file, a notice of appeal or a motion for new trial, your lawyer can also request an appeal bond. And an appeal bond will allow the person to stay out of jail or prison while the appeal is pending. Now, there’s some serious crimes in Georgia where the judge cannot grant an appeal bond, things like murder, kidnapping, rape. But for most other crimes, especially if the person was out of jail while the case was pending, they can stay out of jail while the appeal is pending, but only if the lawyer files that request for an appeal bond.
The next step is the direct appeal. And for most crimes in Georgia, when there’s been a conviction, the case is going to go from the County Superior Court to the Georgia Court of Appeals. And that process can take a long time. It can take many months, because what has to happen before the Court of Appeals considers the case, is the court reporter who handled the case in the trial court has to prepare the transcript, a written document about what everybody said during the trial or during the plea. They have to package that up with all of the other documents in the case and send it to the Court of Appeals. That’s called the record. And preparing the record can take several months in some counties. Once the record gets to the Court of Appeals, then they issue a briefing schedule. They basically tell the lawyers when it’s time to file the paperwork with the court to challenge the conviction. And again, that process can take several months.
In certain cases, the Court of Appeals may want to have oral argument. That’s where the lawyers show up in front of a panel of judges, usually three judges, and they argue the case. It’s not a new trial. They don’t reconsider the evidence, but it is an opportunity for the Court to hear the legal arguments about the case directly from the lawyers. If the direct appeal is not successful, you do have the option of a petition for certiorari. Now, that’s a long Latin word that basically means you ask permission from the next highest court to accept your appeal. If you’re convicted of most crimes in Georgia, and you appeal it to the Court of Appeals, you don’t necessarily have the right to then take the case to the Georgia Supreme Court, and certainly not the United States Supreme Court, unless that court gives you permission to do so. So, if you’ve lost the direct appeal, your lawyer may suggest that you file a petition for certiorari or petition for cert, as we call it, to see if that next highest court, the Georgia Supreme Court or even the United States Supreme Court may give your lawyer permission to file that appeal with them. If that process is not successful, you still have one final option. It’s called a habeas petition.
A habeas petition is filed in the county where the person is being held in custody. So, even though a case may have started in say, Fulton County, the trial was in Fulton County, but if the person was convicted and then sent to some South Georgia prison, say in Tattnall County, the habeas petition is going to be filed in Tattnall County, not Fulton County. And that petition is another opportunity to challenge what happened at trial. But usually, it’s focused only on serious constitutional errors, primarily ineffective assistance of counsel. The petition will be filed. The Attorney General’s Office will respond to it. And then there’s usually going to be a hearing with a different superior court judge. You can bring in the lawyer that handled the trial or handled the plea, and challenge that lawyer as to what they did that maybe they shouldn’t have done, or what they should have done that they didn’t do. If you’re successful at a habeas, the case goes back to the starting point, right back up, say in Fulton County, in our example, and you start out with the case still pending, but with no conviction.
There’s a final thing that can happen in some very exceptional cases in Georgia, and that’s an extraordinary motion for a new trial. That’s what happens when someone discovers new evidence that may change the outcome of the case. And it has to be significant, something like DNA evidence. If you find that out, even if it’s been a year, two years, 10 years after the conviction, in some cases, your lawyer can file that extraordinary motion for new trial and get the case back in court. So, that’s generally the process of how to appeal a criminal conviction in Georgia. If you have any questions about this process, or if you need help with filing an appeal, feel free to give us a call.